Apropos of judicial confirmations and predicting future judicial philosophy (as well as my post the other day on Bruce Ackerman's characterization of Justice Souter as a "moderate conservative"), I received this email from a professor of property law:

I'm writing in connection with your post and your article about Justice Souter not being a "moderate conservative" you would be interested in his approach to what would be considered a somewhat obscure (hard to believe!) issue: whether blocking someone's light (and air) could be a nuisance. The very settled approach in the United States is to reject such claims (England has a doctrine of ancient lights which was firmly rejected here). To my knowledge only two cases have held that blocking light could be a nuisance. One is Prah v. Maretti, 321 N.W.2d 182 (Wis. 1982) and the other is Tenn v. 889 Associates, Ltd., 500 A.2d 366 (N.H. 1985), in an opinion penned by none other than then New Hampshire Justice David Souter. This is a *very* liberal opinion, couched in the ever-evolving-common-law guise. It pretty much encapsulates his approach, but I doubt anyone bothered to read this in the course of the nomination process. It very much supports your point.

Sometimes judicial philosophy is revealed in the most unlikely places.

I apologize in advance if I just gave my colleague Michael O'Neill, currently on-leave to serve as chief staffer to the Senate Judiciary Committee, a whole bunch of new homework!

Update:

Sorry, I should have been more clear about the context that prompted this post--it is responsive to not just my previous post that I link, but more importantly, an insightful discussion in the Comments to that post regarding the question of the similarities between Souter and Harlan's jurisprudence, and whether Souter's use of precedent could be truly described as Burkean, as Harlan often is. I should have made that context more clear when I posted this.

When liberals say they want a "moderate conservative" like O'Connor or Souter, what they really mean is they want a nominee who will vote as a conservative on certain less important issues (e.g., economic issues) and as a solid liberal on important issues like abortion, gay rights, establishment, and affirmative action.

Suppose Republicans said they want a Democratic President to nominate a "moderate liberal" and defined that as a Justice who would vote as a liberal on, say, economic issues, but as a solid conservative (i.e.,with Scalia and Thomas) on abortion, gay rights, establishment, and affirmative action. Would anyone buy that spin?

I just read the cited Souter case and I have to say that your reader gives a pretty slanted view. For one thing, Souter affirmed the dismissal of the plaintiff's nuisance and easement claims. Souter explicitly rejected the "ancient lights" doctrine. "We reject the argument that a prescriptive right to light or air should be recognized at this time." 127 N.H. at 326. Souter did allow the possibility that blocking light might be a nuisance, but didn't find a violation in this case. As far as Souter's general approach in this case, here's the meat of it:

"The present defendant urges us to adopt the Fontainebleau rule and thereby to refuse any common law recognition to interests in light and air, but we decline to do so. If we were so to limit the ability of the common law to grow, we would in effect be rejecting one of the wise assumptions underlying the traditional law of nuisance: that we cannot anticipate at any one time the variety of predicaments in which protection of property interests or redress for their violation will be justifiable. For it is just this recognition that has led the courts to avoid rigid formulations for determining when an interference with the use of property will be actionable, and to rest instead on the flexible rule that actionable, private nuisance consists of an unreasonable as well as a substantial interference with another person's use and enjoyment of his property."

All I read into this is that Souter expressed a preference for flexible standards in nuisance law, which was consistent with settled precedent on the New Hampshire court, over bright-line rules. How that's "very liberal" is a little bit unclear.

The real lesson I would take away from this is that if you really want to get a good idea of a judge's views, it's probably better to read their opinions yourself rather than just accept what someone said about them somewhere on the internet.

Rick - It's simply not possible to use two labels to effectively group the myriad combinations of legal and political viewpoints. "Moderate conservative" simply means a set of views that aren't the opposite on every issue of the speaker's favored views.

Can we have a holiday where all Americans "assume their adversaries are basically honest [and] disagreements represent honest differences" for a day?

I'm not sure why Todd's correspondent thinks it was a bad thing to use common law reasoning in the Tenn case. The Tenn case *is* a common law case. I can certainly understand why it is troublesome to use this approach in constitutional cases, see Scalia's "A Matter of Interpretation," but I don't know why it is troublesome in the context of a common law decision. (Not that I find Souter's opinion persuasive -- for a number of reasons, I don't -- but the reasoning style seems fair in that context.)

The very settled approach in the United States is to reject such claims (England has a doctrine of ancient lights which was firmly rejected here).

It is true that U.S. courts reject "ancient lights" claims. Ancient lights claims are so-called prescriptive easement claims to light and air. (E.g., "I've had a view of the ocean forever; you can't build even a normally-sized building on your property if it would block my view.")

However, it is not clear to me that it is well-settled that nuisance claims involving interference with light and air are not actionable. That's the kind of claim that was at issue in Tenn. Many states hold at least some activities that involve interference with light and air (e.g., building a "spite fence") are actionable nuisances. While some states have generally rejected light/air nuisance claims, I don't think that the New Hampshire Supreme Court had ruled on this issue before.

The difference between a prescriptive easement claim and a nuisance claim is very important here. "[B]locking light could be a nuisance" does not fairly state the holding of Tenn. The court held that an "unreasonable" and "substantial" interference with light and air could constitute a nuisance. Applying this standard, the court rejected the plaintiff's nuisance claim on the facts.

The correspondent writes that the opinion is "couched in the ever-evolving-common-law guise." I am surprised to hear that the view that common law is made case-by-case by common law courts -- like the Tenn court -- might be controversial in some conservative jurisprudential circles. If you think there is something sketchy about Tenn, I would be interested in hearing why you think U.S. courts could legitimately have rejected the English common law doctrine of "ancient rights" in the first place.

For what it's worth, the Tenn opinion is quite articulate about the reasons why U.S. courts rejected the "ancient lights" doctrine and why those reasons would not justify throwing out light/air nuisance claims in the late 20th century. In a nutshell, early U.S. courts believed that public policy favored unrestrained development, but you certainly couldn't claim that that's the public policy of New Hampshire in the late 20th century.

In short, I'm not so what's so "liberal" or otherwise purportedly unreasonable about this opinion.

Alkali:
Sorry, I should have been more clear about the context that prompted this post—it is responsive to not just my previous post that I link, but more importantly, an insightful discussion in the Comments to that post regarding the question of the similarities between Souter and Harlan's jurisprudence, and whether Souter's use of precedent could be truly described as Burkean, as Harlan often is. I should have made that context more clear.

That's the import of the reference to being "couched in the ever-evolving-common-law guise," which is roughly the description of Souter I offer there in contrasting him with Harlan's understaing of precedent as reflective of tradition.